Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Sunday, March 27, 2016

Globalization has produced a wealth of marvelous work that seeks to theorize the emerging relationships between states, non-state actors (especially multinational corporations), and international organizations. For lawyers, the relationship among these actors through law is especially meaningful. What has been emerging in recent years with greater clarify is that while the formal structures of organization of law and its relationship to the state system remains substantially unchanged, the realities on the ground have moved substantially away from these formal structures. The traditional premises that have been used to justify and explain the relationships among states, non-state actors, international organizations, law and governance no longer adequately either explain or justify the actual behaviors and outlooks of these actors.

Thursday, March 24, 2016

I have been considering the work of a very few of the Special Procedures of the UN Human Rights Council (see, e.g., here, and here).

The special procedures of the Human Rights Council are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. The system of Special Procedures is a central element of the United Nations human rights machinery and covers all human rights: civil, cultural, economic, political, and social. As of 27 March 2015 there are 41 thematic and 14 country mandates. (Special Procedure of the Human Rights Council; 2014 Report of special procedures here).

Almost invariably, the work of these special procedures is viewed in isolation and only with respect to their substantive objectives--environment, investment, gender rights, etc. And operationally they are subject to some not undeserved criticism (see, e.g., here). Yet, taken as a whole, these efforts suggest an emerging and quite powerful trajectory for the construction of a new ideological basis for societal, economic, and perhaps most importantly for legal and political ordering among and within states. This essay suggests the elements of a new constituting framework that may be suggested by the work, in the aggregate, of these special procedures.

Professor Knox has just released a progress report on the work of his office. It makes for interesting reading. Most useful, perhaps, is the way in which special mandates are converging around a number of central issues within the quite specific focus of their work. One is beginning to see a greater coordination, and perhaps some coherence in the work of the special mandates around core issues sometimes identified by the Office of the High Commissioner for Human Rights (for the latest see, e.g., HERE).

There are differences in the way one can go about making critiques of
the Chinese political,
constitutional. legal and economic order, Each of these different paths
to critique might produce substantially distinct insights.
In the West, for example, it is common to apply what I call the
outside-in approach. That starts from the set of premises extracted from
global consensus or the reading of democratic traditions among
influential states, and then projects those into China, comparing how
the Chinese approach stacks up against these outside models. A less
common approach, but one sometimes used by comparative scholars is what I
call the inside-out approach. This starts by a rigorous examination of
the system to be examined, both the theory and practice of governance,
and then projects those out against a set of foreign markers. The
outside-in approach tends to reveal more about the foreign system
projected inward and the extent of global harmonization, along with the
character of that harmonization. The inside-out tends to provide greater
insight into the working of the system examined and the extent to which
the gaps between theory and implementation reveal weakness, including
coherence in form or function that might be advanced through a study of
foreign systems.

Jerome Cohen,
Professor of Law at New York University, one of the great scholars of
China in the United States, has recently produced a marvelous essay that
for me highlights what may be some effects that follow the choice of
methodology (Jerome A. Cohen, “A
Looming Crisis for China’s Legal System: Talented Judges and Lawyers
are Leaving the Profession, as Ideology Continues to Trump the Rule of
Law,” Foreign Policy
(February 22, 2016)). The essay provides a powerful consideration of
the consequences of the current Chinese approach to legal reform and its
suggestion of the underlying structural deficiencies of the current
normative Chinese political order. These judgments are made against an
application of the standards of universal legal values which China has
endorsed. The essay suggests the value of an outside-in approach. But it
also exposes the possibilities for a distinctive approach and another
potentially rich vein of analysis using an inside-out approach.
It is in this light that Flora Sapio, Jean Mittelstaedt, Shaoming Zhou, and I thought it might be useful to consider Professor Cohen's
excellent article. To that end each of us prepared a short engagement with
distinct sets of insights developed by Professor Cohen (Introduction here).

Sunday, March 20, 2016

There are differences in the way one can go about making critiques of
the Chinese political,
constitutional. legal and economic order, Each of these different paths
to critique might produce substantially distinct insights.
In the West, for example, it is common to apply what I call the
outside-in approach. That starts from the set of premises extracted from
global consensus or the reading of democratic traditions among
influential states, and then projects those into China, comparing how
the Chinese approach stacks up against these outside models. A less
common approach, but one sometimes used by comparative scholars is what I
call the inside-out approach. This starts by a rigorous examination of
the system to be examined, both the theory and practice of governance,
and then projects those out against a set of foreign markers. The
outside-in approach tends to reveal more about the foreign system
projected inward and the extent of global harmonization, along with the
character of that harmonization. The inside-out tends to provide greater
insight into the working of the system examined and the extent to which
the gaps between theory and implementation reveal weakness, including
coherence in form or function that might be advanced through a study of
foreign systems.

Saturday, March 19, 2016

There are differences in the way one can go about making critiques of the Chinese political, constitutional. legal and economic order, Each of these different paths to critique might produce substantially distinct insights. In the West, for example, it is common to apply what I call the outside-in approach. That starts from the set of premises extracted from global consensus or the reading of democratic traditions among influential states, and then projects those into China, comparing how the Chinese approach stacks up against these outside models. A less common approach, but one sometimes used by comparative scholars is what I call the inside-out approach. This starts by a rigorous examination of the system to be examined, both the theory and practice of governance, and then projects those out against a set of foreign markers. The outside-in approach tends to reveal more about the foreign system projected inward and the extent of global harmonization, along with the character of that harmonization. The inside-out tends to provide greater insight into the working of the system examined and the extent to which the gaps between theory and implementation reveal weakness, including coherence in form or function that might be advanced through a study of foreign systems.

Among state and intergovernmental organizations, the Member States of the European Union, acting in concert or individually, have been among the most aggressive in seeking to create incentives for its Member States to embed the principles of the UN Guiding Principles for Business and Human Rights within their domestic legal orders. This ought to be viewed as a positive step, though not one without its perils and contradictions.

Just recently, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2016)3 on human rights and business, a text that provides more specific guidance to assist member States in preventing and remedying human rights violations by business enterprises and to induce business to respect human rights. It represents a useful translation of the UNGP into policy form. But it also carries forward its contradictions and gaps. Among the more interesting: (1) the insistence on the fiction that state owned enterprises ought to be treated as autonomous of its state owners; (3) the willingness to extend the principle of extraterritoriality through the privatization of European rules enforced within production chain apex corporations without regard to conflicts with the domestic legal orders of host states where this privatized European private law will be implemented; (3) a determination to use extraterritoriality proactively to insert European interpretations of international obligations into the territories of states with different views; and (4) the indirect domestication and privatization of international law through outbound mandatory legal requirements for applying international soft law standards in weak governance and conflict zones. Most interesting is the willingness of the Council of Europe to embed the UNGP into the political program of its member states to seek downstream states to adopt the UNGP as a governance regime in a form to the liking of (or conformity with) European views. This has already had some success (eg here).
The Press Release (with links) and the text of Recommendation CM/(Rec(2016)3 on human rights (Français), follow;:

As is usual in connection with trips of this kind, and as President Obama seeks to solidify the legacy of his presidency in quite palpable ways, the Treasury Department has just issued a Press Release with some quite significant amendments to the Cuba Sanctions regulations. These are long overdue. They will likely meet resistance in Congress. There will be both support and opposition within the Cuban community in Miami and in Cuba itself. Both communities understand that these moves will accelerate a process that will undo the status quo of the last generation. That produces both challenges and opportunities. For the Cuban state and Party apparatus, both the challenges and the opportunities are particularly acute. As is usual in power relations where there are substantial asymmetries of power, the U.S. moves will impact, and to some extent affect, the ability of the Cuban state and Party apparatus to control the shape and pace of reform (or resistance--depending on which side one considers). The effects of these rule changes will have to be embedded in whatever calculus the Cuban state, Party and populace as the process of reform--so necessary and overdue--accelerates.

Make no mistake, that is NOT to suggest some inevitable direction, process and end goal of reform. Neither American ideological expectations (among both its left and right factions) nor those of the Cuban State and Party apparatus, are either necessary nor inevitable. No one can predict the way that those reforms will go. We start with a Party-State system still very much in control and very much in need of "reform and opening up" (to borrow from Chinese Marxist Leninism). We start with an American administration (irrespective of Party affiliation) dedicated to the eventual transformation of the governing ideology of the Cuban state from what it is to something more to the liking of Americans. And we have the Cuban people (in Cuba and elsewhere) in the middle.

Tuesday, March 15, 2016

Flora Sapio (FS), Beitita Horm Pepulim (BHP), and I (LCB) continue our experiment in collaborative dialogue. We move from the individual to the social
self as we work toward a philosophy of the individual. While at first
blush this appears to be well worn ground--who hasn't, over the course
of the last 5,000 years, in every civilization with a recorded history
NOT spent vast amounts of time thinking about the social self? But much
of this thinking starts at the social and works through the issues of control, management and socialization of the individual. That is, they start from the core premise that the individual is the object of a project for which the social serves as an instrument and as an ends. In the spirit of the emerging philosophy of the individual, we propose to invert the conversation--to start with the individual and work through the issues of control, management, and individuation of the social.

But we move from the individual in herself, to the individual as subject
and as symbol, as something which, when observed and transformed from
itself to the idea or symbol of itself, assumes a quite distinct, and
useful, position for the organization of selves--and for the structure
and operation of the law of the social. To that end our conversation
will likely flow around and through the following:

1--the social self as the reflection of the mother
2--the social self as a reflection of the family
3--social self as a reflection/result of one's ancestors
4--the social self as a reflection of God
5-the social self as a refection of the state
6--the social self as terrorist
7--the social self as orthodox

This conversation, like many of its kind, will develop
naturally, in fits and starts. Your participation is encouraged.

Monday, March 14, 2016

Representation as the foundation of governance legitimacy is in crisis. The issue of representation hangs like a sword of the heads of those institutions and mechanisms that increasingly seek to assert governance power over and for individuals. Governance organizations--states, international organizations and non-state actors--all seek to act as representatives of individuals. Yet increasingly the connection between the individuals represented and the apparatus of state, institution or enterprise is increasingly tenuous.

In states legislators and their parliaments increasingly serve and represent outside powers. That has been made quite clear in the context of the Greek bailouts and the Bangladesh responses to the Rana Plaza factory building collapse.

In international organizations, the representation of individuals through states has become clouded through the rise of managerial classes and the distortions of unequal state power. The individual becomes an object with no direct voice in those activities undertaken for their benefit.

In non-state actors, the individual is fully abstracted and commodified. There, even the fig leaf of indirect consent to presentation disappears in the face of enterprises and non-governmental organization who on their own declare their authority to represent the interests of individuals to states and international organizations.

In "Fractured Territories and Abstracted Terrains: Human Rights Governance Regimes Within and Beyond the State", just published in the Indiana Journal of Global Legal Studies 23(1):61-94 (2016) I explore these issues and the consequences for national and transnational governance. The article appears as a contribution to an excellent symposium edited by Daniel Augenstein and Hans Lindahl--Global Law and the Boundaries of Statehood (more about which in a later post).

The abstract and introduction follow. The pre-publication draft may be accessed here.

Saturday, March 12, 2016

Flora Sapio (FS), Beitita Horm Pepulim (BHP), and I (LCB) continue our experiment in collaborative dialogue. We move from the individual to the social
self as we work toward a philosophy of the individual. While at first
blush this appears to be well worn ground--who hasn't, over the course
of the last 5,000 years, in every civilization with a recorded history
NOT spent vast amounts of time thinking about the social self? But much
of this thinking starts at the social and works through the issues of control, management and socialization of the individual. That is, they start from the core premise that the individual is the object of a project for which the social serves as an instrument and as an ends. In the spirit of the emerging philosophy of the individual, we propose to invert the conversation--to start with the individual and work through the issues of control, management, and individuation of the social.

But we move from the individual in herself, to the individual as subject
and as symbol, as something which, when observed and transformed from
itself to the idea or symbol of itself, assumes a quite distinct, and
useful, position for the organization of selves--and for the structure
and operation of the law of the social. To that end our conversation
will likely flow around and through the following:

1--the social self as the reflection of the mother
2--the social self as a reflection of the family
3--social self as a reflection/result of one's ancestors
4--the social self as a reflection of God
5-the social self as a refection of the state
6--the social self as terrorist
7--the social self as orthodox

This conversation, like many of its kind, will develop
naturally, in fits and starts. Your participation is encouraged.

In
this post Flora Sapio comes back to the mother in the formation of the social self with a nod to the late Justice Antonin Scalia.

Eli Lund, Executive Head of Secretariat for the Council on Ethics for the Norwegian Government Pension Fund-Global, Norway's flagship sovereign wealth fund, has been kind enough to circulate the Council on Ethics Annual Report 2015.

The Annual Report includes brief articles on specific topics relevant to the Council’s work, such as the assessment of companies producing nuclear weapons, corruption risk, environmental damage or violation of worker’s rights. The report also includes a summary of all the Council’s recommendations to Norges Bank that have been published in 2015 and until 1 February 2016.

Wednesday, March 09, 2016

The Association for the Study of the Cuban Economy (ASCE) has just posted its call for papers (convocatoria a sumarios/ensayos) for its upcoming 2016 Conference to be held in Miami, Florida, 28-30 July. Affiliated with the American Economic Association and the Allied Social Sciences Association of the United States, ASCE maintains professional contacts with economists inside Cuba —whether independent or associated with the Cuban government— who are interested in engaging in scholarly discussion and research.

Tuesday, March 08, 2016

Flora Sapio (FS), Beitita Horm Pepulim (BHP), and I (LCB) continue our experiment in collaborative dialogue. We move from the individual to the social
self as we work toward a philosophy of the individual. While at first
blush this appears to be well worn ground--who hasn't, over the course
of the last 5,000 years, in every civilization with a recorded history
NOT spent vast amounts of time thinking about the social self? But much
of this thinking starts at the social and works through the issues of control, management and socialization of the individual. That is, they start from the core premise that the individual is the object of a project for which the social serves as an instrument and as an ends. In the spirit of the emerging philosophy of the individual, we propose to invert the conversation--to start with the individual and work through the issues of control, management, and individuation of the social.

But we move from the individual in herself, to the individual as subject
and as symbol, as something which, when observed and transformed from
itself to the idea or symbol of itself, assumes a quite distinct, and
useful, position for the organization of selves--and for the structure
and operation of the law of the social. To that end our conversation
will likely flow around and through the following:

1--the social self as the reflection of the mother
2--the social self as a reflection of the family
3--social self as a reflection/result of one's ancestors
4--the social self as a reflection of God
5-the social self as a refection of the state
6--the social self as terrorist
7--the social self as orthodox

This conversation, like many of its kind, will develop
naturally, in fits and starts. Your participation is encouraged.

In
this post Flora Sapio comes back to the state of nature and LCB responds.

Flora Sapio (FS), Beitita Horm Pepulim (BHP), and I (LCB) continue our experiment in collaborative dialogue. We move from the individual to the social
self as we work toward a philosophy of the individual. While at first
blush this appears to be well worn ground--who hasn't, over the course
of the last 5,000 years, in every civilization with a recorded history
NOT spent vast amounts of time thinking about the social self? But much
of this thinking starts at the social and works through the issues of control, management and socialization of the individual. That is, they start from the core premise that the individual is the object of a project for which the social serves as an instrument and as an ends. In the spirit of the emerging philosophy of the individual, we propose to invert the conversation--to start with the individual and work through the issues of control, management, and individuation of the social.

But we move from the individual in herself, to the individual as subject
and as symbol, as something which, when observed and transformed from
itself to the idea or symbol of itself, assumes a quite distinct, and
useful, position for the organization of selves--and for the structure
and operation of the law of the social. To that end our conversation
will likely flow around and through the following:

1--the social self as the reflection of the mother
2--the social self as a reflection of the family
3--social self as a reflection/result of one's ancestors
4--the social self as a reflection of God
5-the social self as a refection of the state
6--the social self as terrorist
7--the social self as orthodox

This conversation, like many of its kind, will develop
naturally, in fits and starts. Your participation is encouraged.

Monday, March 07, 2016

Americans (and I use the term quite broadly) have cultivated a somewhat sophisticated love-hate relationship with ideology. Americans tend to use it as a pejorative, as a system of thinking about things that may be artificial, or better put, brittle. It is rarely a match for the more profound normative systems offered by natural law, or religion, or those ancient systems of ethics and morals that produce our laws, norms, social and economic structures. These are natural--in their the scientific or religious sense--and thus more robust than "mere" ideology, now understood as a self conscious construct. They are not constructs of the devious mind seeking to build systems the way Dr. Frankenstein built his monster. In a sense, there is an undercurrent in thinking about ideology that would see in it an exercise in an inversion of failure--ideology produces facts from truth.

There is a little of that in much American engagement with (mere) ideology. And that ideological substructure (if I am permitted a little word play here) is all too apparent when Americans tend to view the normative structures of Chinese societal or political organization. The cultivation of this perspective is important and may be deeply culturally embedded, especially within our intellectual classes. But it does serve to provide a necessary orientation when Americans engage in the project of comparison, generally, but especially of assessment, of systems that are quite formally distinct. To consider an ideology--say Chinese ideology--is to consider the instrumental political platforms of factions playing out against a broader, and implicitly more legitimate, normative system which is either ignored, resisted or masked by the ideological games of elites, whose legitimacy is weakened thereby.

Flora Sapio and I continue our experiment in collaborative dialogue. We move from the individual to the social
self as we work toward a philosophy of the individual. While at first
blush this appears to be well worn ground--who hasn't, over the course
of the last 5,000 years, in every civilization with a recorded history
NOT spent vast amounts of time thinking about the social self? But much
of this thinking starts at the social and works through the issues of control, management and socialization of the individual. That is, they start from the core premise that the individual is the object of a project for which the social serves as an instrument and as an ends. In the spirit of the emerging philosophy of the individual, we propose to invert the conversation--to start with the individual and work through the issues of control, management, and individuation of the social.

But we move from the individual in herself, to the individual as subject
and as symbol, as something which, when observed and transformed from
itself to the idea or symbol of itself, assumes a quite distinct, and
useful, position for the organization of selves--and for the structure
and operation of the law of the social. To that end our conversation
will likely flow around and through the following:

1--the social self as the reflection of the mother
2--the social self as a reflection of the family
3--social self as a reflection/result of one's ancestors
4--the social self as a reflection of God
5-the social self as a refection of the state
6--the social self as terrorist
7--the social self as orthodox

This conversation, like many of its kind, will develop
naturally, in fits and starts. Your participation is encouraged.

In this post Beitita Horm Pepulim (BHP) joins us again and responds to Flora Sapio's (FS) consideration the social self and the mother with a response in turn from LCB.

Sunday, March 06, 2016

Americans (and I use the term quite broadly) have cultivated a somewhat sophisticated love-hate relationship with ideology. Americans tend to use it as a pejorative, as a system of thinking about things that may be artificial, or better put, brittle. It is rarely a match for the more profound normative systems offered by natural law, or religion, or those ancient systems of ethics and morals that produce our laws, norms, social and economic structures. These are natural--in their the scientific or religious sense--and thus more robust than "mere" ideology, now understood as a self conscious construct. They are not constructs of the devious mind seeking to build systems the way Dr. Frankenstein built his monster. In a sense, there is an undercurrent in thinking about ideology that would see in it an exercise in an inversion of failure--ideology produces facts from truth.

There is a little of that in much American engagement with (mere) ideology. And that ideological substructure (if I am permitted a little word play here) is all too apparent when Americans tend to view the normative structures of Chinese societal or political organization. The cultivation of this perspective is important and may be deeply culturally embedded, especially within our intellectual classes. But it does serve to provide a necessary orientation when Americans engage in the project of comparison, generally, but especially of assessment, of systems that are quite formally distinct. To consider an ideology--say Chinese ideology--is to consider the instrumental political platforms of factions playing out against a broader, and implicitly more legitimate, normative system which is either ignored, resisted or masked by the ideological games of elites, whose legitimacy is weakened thereby.

Americans (and I use the term quite broadly) have cultivated a
somewhat sophisticated love-hate relationship with ideology. Americans
tend to use it as a pejorative, as a system of thinking about things
that may be artificial, or better put, brittle. It is rarely a match for
the more profound normative systems offered by natural law, or
religion, or those ancient systems of ethics and morals that produce our
laws, norms, social and economic structures. These are natural--in
their the scientific or religious sense--and thus more robust than
"mere" ideology, now understood as a self conscious construct. They are
not constructs of the devious mind seeking to build systems the way Dr.
Frankenstein built his monster. In a sense, there is an undercurrent in
thinking about ideology that would see in it an exercise in an
inversion of failure--ideology produces facts from truth.

There
is a little of that in much American engagement with (mere) ideology.
And that ideological substructure (if I am permitted a little word play
here) is all too apparent when Americans tend to view the normative
structures of Chinese societal or political organization. The
cultivation of this perspective is important and may be deeply
culturally embedded, especially within our intellectual classes. But it
does serve to provide a necessary orientation when Americans engage in
the project of comparison, generally, but especially of assessment, of
systems that are quite formally distinct. To consider an ideology--say
Chinese ideology--is to consider the instrumental political platforms of
factions playing out against a broader, and implicitly more legitimate,
normative system which is either ignored, resisted or masked by the
ideological games of elites, whose legitimacy is weakened thereby.

Some conclusions worth debating: (1) structural adjustment programs should be subjected to robust human rights impact assessments and not only orientated at short term fiscal targets to regain debt sustainability; (2) the human rights effects of tax avoidance ought to be considered--as well as the structural problems of taxing transnational production chains; (3) China lacks a robust framework for robust human rights impacts assessments of its lending activities, especially abroad; and (4)that lending programs for Greece must be sensitive to their human rights effects on the Greek population. Each of these insights suggest the need for coherence in policy among a constellation of economic activity in the public and private spheres. But some of the insights can be generalized--especially those that were derived from the examination of Greek debt and Chinese lending activities. At the same time, the reports also suggest a substantial tension: the relationship between sovereign rights and responsibilities of states (especially in the Greek case) and transnational protection for human rights of those who states are obliged (under constitutional and international law) to represent. Until that contradiction is overcome--or principles of constitutional and international governance advance, solutions will always be partial and fractured.

Saturday, March 05, 2016

Americans (and I use the term quite broadly) have cultivated a
somewhat sophisticated love-hate relationship with ideology. Americans
tend to use it as a pejorative, as a system of thinking about things
that may be artificial, or better put, brittle. It is rarely a match for
the more profound normative systems offered by natural law, or
religion, or those ancient systems of ethics and morals that produce our
laws, norms, social and economic structures. These are natural--in
their the scientific or religious sense--and thus more robust than
"mere" ideology, now understood as a self conscious construct. They are
not constructs of the devious mind seeking to build systems the way Dr.
Frankenstein built his monster. In a sense, there is an undercurrent in
thinking about ideology that would see in it an exercise in an
inversion of failure--ideology produces facts from truth.

There
is a little of that in much American engagement with (mere) ideology.
And that ideological substructure (if I am permitted a little word play
here) is all too apparent when Americans tend to view the normative
structures of Chinese societal or political organization. The
cultivation of this perspective is important and may be deeply
culturally embedded, especially within our intellectual classes. But it
does serve to provide a necessary orientation when Americans engage in
the project of comparison, generally, but especially of assessment, of
systems that are quite formally distinct. To consider an ideology--say
Chinese ideology--is to consider the instrumental political platforms of
factions playing out against a broader, and implicitly more legitimate,
normative system which is either ignored, resisted or masked by the
ideological games of elites, whose legitimacy is weakened thereby.

Americans (and I use the term quite broadly) have cultivated a somewhat sophisticated love-hate relationship with ideology. Americans tend to use it as a pejorative, as a system of thinking about things that may be artificial, or better put, brittle. It is rarely a match for the more profound normative systems offered by natural law, or religion, or those ancient systems of ethics and morals that produce our laws, norms, social and economic structures. These are natural--in their the scientific or religious sense--and thus more robust than "mere" ideology, now understood as a self conscious construct. They are not constructs of the devious mind seeking to build systems the way Dr. Frankenstein built his monster. In a sense, there is an undercurrent in thinking about ideology that would see in it an exercise in an inversion of failure--ideology produces facts from truth.

There is a little of that in much American engagement with (mere) ideology. And that ideological substructure (if I am permitted a little word play here) is all too apparent when Americans tend to view the normative structures of Chinese societal or political organization. The cultivation of this perspective is important and may be deeply culturally embedded, especially within our intellectual classes. But it does serve to provide a necessary orientation when Americans engage in the project of comparison, generally, but especially of assessment, of systems that are quite formally distinct. To consider an ideology--say Chinese ideology--is to consider the instrumental political platforms of factions playing out against a broader, and implicitly more legitimate, normative system which is either ignored, resisted or masked by the ideological games of elites, whose legitimacy is weakened thereby.

Friday, March 04, 2016

The Council on Ethics for the Government Pension Fund Global (Etikkrådet for Statens pensjonsfond utland) recommends the exclusion of San Leon Energy Plc (SLE; SLGYY) from the Government Pension Fund Global because the company contributes to serious violations of fundamental ethical norms through its onshore hydrocarbon exploration in Western Sahara on behalf of Moroccan authorities.

San Leon Energy San Leon Energy plc is an oil and gas exploration company with headquarters in Ireland. It is said to be Europe's leading shale gas company by acreage and claims that it "already manages substantial oil and gas projects in Poland, Albania, Morocco, Spain, Ireland, France and Romania. Our main focus is currently on Polish conventional and unconventional oil and gas reserves, Albania and Morocco." (here).

Please find the Council's recommendation here. My brief comments and a portion of the decision follow below. I suggest that observation rather than exclusion might have been considered, and that the Ethics Council ought to have applied the UN Guiding Principles for Business and Human Rights in its examination.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.